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What if your state already has a law?

When both the federal and state governments address the same situation, the stronger law applies. This means that if your state has a workplace breastfeeding law that is stronger than the federal law, your state law will overrule the "Break Time for Nursing Mothers" law in the places where it is stronger. The federal law will be enforced in all states without a state law.

To figure out what this means in your state, you need to compare each part of the two laws. The law that provides the strongest protection to you, for each part, will apply. See the example below, comparing the Colorado state law to the federal law.

First, look at the text of the two laws:

Colorado State Law: Colo. Rev. Stat. ยง 8-13.5-101 et seq. (2008) require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for up to two years after the child's birth. The employer must make reasonable efforts to provide a place, other than a toilet stall, for the employee to express breast milk in privacy. The law also requires the Department of Labor and Employment to provide, on its website, information and links to other websites where employers can access information regarding methods to accommodate nursing mothers in the workplace. (2008 Colo., Sess. Laws, Chap. 106, HB 1276)

Federal law: Section 4207 of the law amends the Fair Labor Standards Act (FLSA) of 1938 (29 U.S. Code 207) to require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk. The employer is not required to compensate an employee receiving reasonable break time for any work time spent for such purpose*. The employer must also provide a place, other than a bathroom, for the employee to express breast milk. If these requirements impose undue hardship, an employer that employs fewer than 50 employees is not subject to these requirements. The federal requirements shall not preempt a state law that provides greater protections to employees.

Then, choose the pieces of each law that apply to which employees are covered, which employees are exempt, how much time the employee can use, how many months the employee can take pumping breaks, and where the pumping breaks will happen.

Next, identify which law provides more protection for each part.

Coverage: The Colorado law covers all employees while the federal law only covers employees who are eligible for overtime pay. Because the Colorado law offers more protection by covering more employees, it overrules the federal law.

Exemption: In the federal law, an undue hardship exemption is only a possibility for business with fewer than 50 employees, but in the Colorado law all employers can apply for undue hardship. Since the federal law provides stronger protection for breastfeeding families, Colorado employers must follow federal law. In both cases, the burden is on the business to prove that providing these accommodations would cause significant hardship relative to the size and nature of the business.

Time: In both the federal and Colorado law employers are required to provide "reasonable" break time.

Duration: The Colorado law states that breastfeeding employees have the right to express milk during the work day for up to two years after the child's birth, but the federal law only requires break time for the baby's first year. Because the Colorado law offers more protection by extending the right to pump at work until the baby's second birthday, it overrules the federal law.

Space: The federal law requires employers to provide a non-bathroom space for employees to pump. Colorado only requires employers to make "reasonable efforts" to find a non-bathroom space, so the federal law will apply in this situation.

See a comparison of this information in the chart below:

  Colorado Federal Strongest coverage for each part of the law rules, so here are the rights of breastfeeding employees in Colorado:
Coverage All employees Nonexempt employees All employees
Exemption Employer must prove undue hardship Employers with fewer than 50 employees must prove undue hardship. Employers with more than 50 employees must comply. Employers with fewer than 50 employees must prove undue hardship. Employers with more than 50 employees must comply.
Time Reasonable Reasonable Reasonable
Duration 2 years 1 year 2 years
Space Employers must make reasonable efforts to find a non-bathroom space Non-bathroom space Non-bathroom space

Visit the U.S. Department of Labor Women's Bureau online map of employment protections for women who are pregnant or nursing for a state-by-state listing of breastfeeding laws or contact your state breastfeeding coalition. For information on other state breastfeeding laws, see the directory from the National Conference of State Legislatures.

**Continue to Next Section: Who is in charge of enforcing the law?**

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